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2014 PA Super 273

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MAURQUIS THOMSON Appellant No. 2313 EDA 2013

Appeal from the Judgment of Sentence June 21 , 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP

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- 0002230

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BEFORE: BOWES, J., DONOHUE J., AND MUNDY, J. CONCURRING OPINION BY BOWES, J.: FILED DECEMBER 1 0, 2014 I join the well

- reasoned opinion of the learned majority. I write further only to address our prior decision in Commonwealth v. Morris , 958 A.2d 569 (Pa.Super. 2008) ( en banc ), a decision in which I joined, and a seeming inconsistency in the manner in whi ch our courts have construed the terms “convicted” and “conviction” in other statutes. The Morris decision involved an interpretation of 42 Pa.C.S. § 9715. That statute authorizes life imprisonment for “any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter[.]” 42 Pa.C.S. § 9715(a) (emphasis added). This Court held that the phrase “any time”J

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meant that an individual found guilty of two separate third

- degr ee murder charges at the same trial could be sentenced to life imprisonment. We expressly overruled our prior decision in Commonwealth v. Smith , 710 A.2d 1179 (Pa.Super. 1998), which had interpreted the term “previously convicted” to mean that an individu al could not be sentenced to life imprisonment if found guilty of two counts of third

- degree murder at the same trial. A panel of this Court recently opined, “[t] he term ‘conviction’ and its related term ‘convicted’ have a distinct legal meaning under th e law.” Commonwealth v. Hale , 85 A.3d 570, 581 (Pa.Super. 2014), allowance of appeal granted , __ A.3d __ (Pa. 2014) (filed July 2, 2014). Discussing Commonwealth v. Palarino , 77 A.2d 665 (Pa.Super. 1951), the Hale Court set forth that “[t]he word ‘conviction’ has both a popular and a technical meaning. As commonly understood, it means a verdict of guilty, or perhaps a plea of guilty, and for some purposes this is the meaning attributed to it by the courts.” Hale , supra at 581 (quoting Palarino , supra at 667). However, the term also “has been held to imply ‘judgment’ or ‘sentence’ upon the verdict or plea.” Id

. Indeed, the Hale Court recognized that dating back to at least 1826, the Pennsylvania Supreme Court had opined that, “ When the law speaks of conviction, it means a judgment, and not merely a verdict, which, in common parlance, is called a conviction.” Id . (quoting Smith v.J

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Commonwealth , 14 Serg. & Rawle 69 (1826) (italics in original)). In Smith v. Commonw ealth , our High Court reversed a recidivist burglary sentence that “subjected the defendant to life imprisonment because the indictment for his second burglary did not provide what judgment the defendant received for his prior burglary.” Hale , supra at 58 1 (discussing Smith v. Commonwealth , supra ). The Hale panel continued that this Court has followed the technical reading of the word “conviction” expressed in Smith v. Commonwealth in other contexts. In Commonwealth v. Black , 407 A.2d 403 (Pa.Super. 1979 ), this Court addressed a finding of guilt for both burglary and the underlying theft offense. The defendant was found guilty of both charges but the court only sentenced the defendant on the burglary count. This Court found that the statute in question, which prohibited a “conviction” for both burglary and “the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense,” 18 Pa.C.S. § 3502(d), only precluded multiple sentences. See id

. We reached a sim ilar result in Commonwealth v. Maguire , 452 A.2d 1047 (Pa.Super. 1982). There, the defendant challenged multiple guilty verdicts for the inchoate crimes of possession of an instrument of crime, criminal conspiracy, and attempted burglary. The court only sentenced on the attempted burglary count, but the defendant maintained that the guilty verdicts for conspiracy and attempted burglary violated the then

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version of 18 Pa.C.S. § 906. The Maguire panel disagreed. Importantly, it concluded, “appe llant construes ‘convicted’ as equivalent to the jury's ‘verdict,’ which it is not.” Id

. 1049. According to the Maguire Court, “the judge convicted appellant of one inchoate crime by imposing a judgment of sentence for attempted burglary.” Id

. at 1050 ( italics in original). The Hale panel also cited to Commonwealth v. Grekis , 601 A.2d 1284 (Pa.Super. 1992). The Grekis Court noted, “we have interpreted the term ‘conviction’ in section 906 to mean entry of a judgment of sentence not a finding of guilt by the jury.” Id

. at 1294. This Court reached a similar conclusion in Commonwealth v. Hassine , 490 A.2d 438, 460 (Pa.Super. 1985), where we posited, “we accept the word ‘conviction’ as referring to post
- verdict judgment by a court, and not to the verdict b y the jury itself[.]” Instantly, following the technical interpretation of the words “convicted” and “conviction” that we have utilized in other cases interpreting various criminal statutes, § 9715 could be read that “any person sentenced for murder of the third degree in the C ommonwealth who has previously been sentenced at any time of murder or voluntary manslaughter in this Commonwealth . . . . shall be sentenced to life imprisonment.” At the same time, the popular usage of the word “convicted” connotes a finding of guilt

an d not a judgment of sentence. See also Commonwealth v. Kimmel , 565 A.2d 426, 427 n.2 (Pa. 1989) (quoting Commonwealth v. Beasley , 479 A.2d 460 (Pa. 1984), and stating, “the term ‘convicted’ means ‘foundJ

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guilty’ and not ‘found guilty and sentenced.’”). In deed, it is apparent from the entire statute and other related mandatory statutes that the terms “convicted” and “conviction” used in § 9715 were used in their popular

sense. 1 Moreover, we are bound by Morris . Nonetheless, I am troubled by the apparent i nconsistency in our interpretation of the words “convicted” and “conviction.” 2 In my view, the legislature would do well to define the words “conviction” or “convicted” to reflect when it is using those words in either their popular or technical sense. Judge Donohue joins this Concurring Opinion.

____________________________________________ 1 I am cognizant of the presumption that the legislature is aware of prior decisional law when crafting statutory language.

2 I recognize that the Morris Court did not focus its analysis on the use of the word “convicted.”